scholarly journals Les lendemains de l'arrêt Kravitz : la responsabilité du fabricant dans une perspective de réforme

2005 ◽  
Vol 21 (1) ◽  
pp. 5-29
Author(s):  
Thérèse Rousseau-Houle
Keyword(s):  
Present State ◽  
Case Law ◽  
Important Case ◽  
General Motors ◽  
Supreme Court Of Canada ◽  
Latent Defects ◽  
Legal Writing ◽  
The Supreme Court ◽  
Right Of Action ◽  
Legislative Reforms

In the milestone case of Kravitz v. General Motors, the Supreme Court of Canada has recently confirmed that a contract of sale confers on the buyer a right of action against the manufacturer, as distinct from the seller, under the legal warranty against latent defects. The obligation to answer for latent defects is inherent in the sale, and the action to enforce that obligation becomes available, as a incidental right, to subsequent owners of the thing sold, who may proceed directly against the manufacturer. This important case reinforces the prevalent tendency in Quebec case-law and legal writing towards better safeguards for the consumer. Interesting vistas are opened in this paper by comparing the principles underlying the Supreme Court's decision in Kravitz with French and American rules on manufacturer's liability. This exercise further highlights the significance of Kravitz in regard of the present state of the law and of legislative reforms currently under consideration.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

An Inevitable “Marriage March”? A Survey of the “Arbiter of Religious Dogma” in Canadian Case Law

2016 ◽  
Vol 45 (2) ◽  
pp. 127-145
Author(s):  
Dia Dabby
Keyword(s):  
Decision Making ◽  
Discourse Analysis ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Religious Doctrine ◽  
Decision Making Capacity ◽  
The Supreme Court ◽  
Canadian Context ◽  
Religious Dogma ◽  
Religion In Canada

“Arbiter of religious dogma,” first expressed by the Supreme Court of Canada in Syndicat Northcrest v. Amselem ([2004] 2 SCR 551), has had a lasting and pervasive effect on the Canadian lawscape. Developed in an effort to remove the State (and therefore Court apparatus) from a decision-making capacity in questions related to religious doctrine, this expression has become an inevitable mantra when discussing issues related to religion in Canada. This article argues, however, that the presence of this expression should not be understood as the end of a conversation, but rather, the beginning of a novel one on the legitimacy of religion in law. Through discourse analysis, this article will endeavor to suggest that this “marriage march” between law and religion is inevitable in the Canadian context.

scholarly journals The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

1969 ◽  
pp. 5
Author(s):  
D. H. Clark
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
House Of Lords ◽  
Mumbo Jumbo ◽  
The Supreme Court ◽  
The Law ◽  
The Individual

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo

scholarly journals Forensic Bitemark Evidence in Canada

2019 ◽  
Author(s):  
Jason Chin ◽  
D'Arcy White
Keyword(s):  
Case Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Scientific Validity ◽  
Bite Mark ◽  
Trial Judges ◽  
The Supreme Court ◽  
The Face ◽  
Considerable Controversy ◽  
The Subject

Recent reviews by peak scientific bodies have concluded that forensic bitemark identification is not a demonstrably valid science. In the United States, the practice of forensic bitemark identification has been linked to at least 14 wrongful convictions and has been the subject of considerable academic study. Much less is known about the use of forensic bitemark identification in Canadian courts. To remedy this lack of knowledge, we performed an exhaustive search of the reported Canadian case law. We found 14 cases in which courts relied on a forensic bitemark identification, a number that likely underestimates the use of this practice. Still, in the cases we found, forensic bitemark experts overstated the accuracy and reliability of their practice, and did not appear to disclose the considerable controversy in the field. Furthermore, and despite repeated directions from the Supreme Court of Canada that trial judges should exercise a robust gatekeeper role in the face of invalid science, none of the courts excluded bite mark analysis, nor expressly questioned the scientific validity of the practice. We discuss these findings and provide recommendations based on the principle of transparency.

scholarly journals Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l'objection de conscience

2005 ◽  
Vol 28 (1) ◽  
pp. 185-205
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Conscience ◽  
Current Case ◽  
The Supreme Court ◽  
The Subject ◽  
The Difference ◽  
The Right

The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the "Constitutional Exemption". It is the possibility not to be bound to obey the neutral laws that conflict with one's conscience or religion. It is what we call in French l'objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l'objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

Part VI Constitutional Theory, A Constitutional Interpretation, Ch.41 Constitutional Interpretation: On Issues of Ontology and of Interlegality

2017 ◽  
Author(s):  
Beaulac Stéphane
Keyword(s):  
International Law ◽  
Case Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
The Supreme Court ◽  
Recent Developments ◽  
Domestic Use ◽  
Contemporary Approach

The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.

The Right to Treatment and the Right to Refuse Treatment-recent Case Law

1974 ◽  
Vol 2 (4) ◽  
pp. 455-470 ◽  
Author(s):  
Lynn Bregman Kassirer
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Important Case ◽  
Recent Case ◽  
The Supreme Court ◽  
Right To Refuse Treatment ◽  
The Right ◽  
Right To Refuse

Perhaps no other area of constitutional law has been expanding as rapidly as that pertaining to the rights of the incarcerated. The right to treatment has received the most judicial attention; one such case has just recently been granted review by the Supreme Court. This important case, and others which have appeared in recent months are presented for discussion in this article.

scholarly journals Copyright Protection of Government-Related Material Before the Courts of the United States and Canada: Considerations for Future Reforms

2020 ◽  
Author(s):  
Heiko Richter
Keyword(s):  
United States ◽  
Supreme Court ◽  
Copyright Protection ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Technological Advancement ◽  
Related Material ◽  
Industry Standards ◽  
The Supreme Court ◽  
Legislative Reforms

AbstractCopyright protection of government-related material lies at the intersection of private incentives, public interest, and political motivation. These interests naturally clash. Therefore, the justification and scope of copyright protection for such materials has been the subject of intense controversy ever since. Recently, the Supreme Court of the United States and the Supreme Court of Canada handed down landmark decisions on the application of the respective century-old doctrines and provisions. Moreover, courts in the U.S. and Canada have lately addressed the protectability of privately created, government-adopted industry standards. This article takes these decisions as an occasion to reflect on the copyright protection of government-related material against the background of rapid technological advancement and substantial ongoing societal and political change. Taking into account the regulatory experiences in the EU, this article questions the prevalent assumptions of trustworthy state action and undistorted functioning of markets, which considerably underlie the design of current government copyright regimes around the globe. In this light, the article aims to provide avenues for future legislative reforms that address the copyright of government-related materials. It suggests a more focused, nuanced, and holistic regulatory approach for strengthening and maintaining open, democratic societies.

scholarly journals Health Care and Human Rights after Auton and Chaoulli

2010 ◽  
Vol 54 (4) ◽  
pp. 717-738 ◽  
Author(s):  
Mel Cousins
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Access To Health Care ◽  
Case Law ◽  
Public Health Care ◽  
Supreme Court Of Canada ◽  
Judicial Interpretation ◽  
Language Interpretation ◽  
Access To Health ◽  
The Supreme Court

Abstract The judicial interpretation of the entitlement to health care under the Charter and human rights legislation has tended to swing between interventionist and non-interventionist poles. In Eldridge, the Supreme Court of Canada held that a failure to provide sign language interpretation where this was necessary to ensure equal access to health care was in breach of the equality provisions of the Charter. However, in a subsequent case, Auton, the Court narrowly circumscribed the limits of this approach, holding that the Canadian system of public health care was, by its very terms, a partial health plan. It followed that exclusion of particular non-core services could not, in itself, be seen as less favourable treatment. The Chaoulli decision marked a return to a more interventionist approach with the Court holding (by a narrow majority) that the prohibition on private health insurance provided for in Quebec law was inconsistent with section 1 of the Quebec Charter. This judgment has been cited in over eighty decisions of courts and tribunals. However, just how important has Chaoulli been in terms of the overall approach of the Canadian courts? The author suggests that Chaoulli—despite its significance in the legislative arena—has had a somewhat limited impact to date on the case law concerning health care, and that Auton has clearly had a greater impact to date. The author examines several examples from subsequent case law that point to the weakness of the approaches taken in both Auton and Chaoulli. The narrow approach adopted in Auton can lead to equality claims being dismissed without any proper discrimination analysis and shows the manner in which a broad use of the “benefit provided by law” requirement may weaken equality jurisprudence. Conversely, the case law highlights the fact that the courts will have to reject much more difficult claims than those upheld in Chaoulli unless they wish to develop positive obligations under section 7 of the Charter.

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